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http://ssrn.com/abstract=1128144
 
 

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Law after the Welfare State: Formalism, Functionalism and the Ironic Turn of Reflexive Law


Peer Zumbansen


York University - Osgoode Hall Law School


CLPE Research Paper No. 13/2008
American Journal of Comparative Law, Vol. 56, 2008

Abstract:     
This paper analyzes the contemporary emergence of neo-formalist and neo-functionalist approaches to law-making at a time when the state is seeking to reassert, reformulate and reconceptualize its regulatory competence, both domestically and transnationally. While the earlier turn to alternative regulation modes, conceptualized under the heading of "legal pluralism," "responsive law," or "reflexive law" in the 1970s and 1980s, had aimed at a more socially responsive, contextualized, and ultimately learning mode of legal intervention, the contemporary revival of functionalist jurisprudence and its reliance on "social norms" embraces a limitation model of legal regulation. After revisiting the Legal Realist critique of Formalism and the formulation of functionalist regulation as a progressive agenda, this paper compares the American and German experiences with the rise of the social interventionist state in order to ask where law stands "after the welfare state" at the outset of the twenty-first century.

Number of Pages in PDF File: 43

Keywords: neo-formalism, neo-functionalism, law-making, legal regulation, rule of law, welfare state, responsive law, reflexive law

JEL Classification: K10, K33, K40

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Date posted: May 4, 2008 ; Last revised: July 16, 2008

Suggested Citation

Zumbansen, Peer, Law after the Welfare State: Formalism, Functionalism and the Ironic Turn of Reflexive Law. CLPE Research Paper No. 13/2008; American Journal of Comparative Law, Vol. 56, 2008. Available at SSRN: http://ssrn.com/abstract=1128144

Contact Information

Peer Zumbansen (Contact Author)
York University - Osgoode Hall Law School ( email )
4700 Keele Street
Toronto, Ontario M3J 1P3
Canada
416-736-5535 (Phone)
416-736-5736 (Fax)
HOME PAGE: http://www.osgoode.yorku.ca/faculty/peerzumbansen.html
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